Beware of the “Pregnancy Police”

Remember the “crack baby” scare of the late 1980s and early 1990s?  Well, it is still around. Recall the hype associated with “crack cocaine” which was elevated to national headlines with the death of basketball star Len Bias (first round draft pick of the Boston Celtics) in June, 1986, allegedly of crack cocaine (it turned out that this is not why he died). During July 1986 alone, there were 74 evening news segments regarding crack cocaine, many of which were reinforced by the erroneous belief that Bias’ death was due to a crack cocaine overdose. 

In the months leading up to the 1986 elections, more than 1000 stories appeared on crack cocaine in the National Press, including five cover stories each in Time and Newsweek.  NBC News ran 400 separate reports on crack cocaine, 15 hours of air time.  Time called crack cocaine the “issue of the year” in its September 22, 1986 issue; Newsweek called it the “biggest news story since Vietnam and Watergate” (June 16, 1986).  CBS news program 48 Hours ran a documentary entitled “48 Hours on Crack Street” which became the most watched documentary in television history.  ABC News termed crack as a “plague that was eating away at the fabric of America.”

Although the National Institute of Drug Abuse annual reports suggest that crack cocaine use was limited to an extremely small drug user subculture (1 to 2% of the population), the media's hype regarding the use of this drug became the catalyst for an enormous concern pertaining to its widespread use.  This is illustrated by a Gallup Poll showing that respondents described drug abuse as the most important problem facing the country.

Shortly thereafter came the publicity over so-called “crack babies.”  This turned into one of the most outrageous forms of judicial sexism when legislators and prosecutors attempted to criminalize pregnant women addicted to drugs, especially crack cocaine.  One study by ACLU attorney Loren Siegel appearing in the book Crack in America by Craig Reinarman and Harry Levine (University of California Press, 1997), appropriately called “The Pregnancy Police Fight the War On Drugs,” reveals one of the most repressive sides to the war on drugs. 

Siegel noted that over 200 prosecutions were directed toward women as overzealous prosecutors misused the law (stretching the limits of legal reasoning) against women.   Siegel cites the racial bias in such a crackdown by observing that in Florida in 1989 more than 700 pregnant women in public and private clinics were tested for drugs.  There was virtually no difference by race in the percentage who tested positive (15.4% of the white women tested positive versus 14.1% of the African-American women), yet African-American women were almost ten times more likely to be reported to the authorities for drug abuse.

One woman in North Carolina was charged with “assault with a deadly weapon” (that “weapon” being crack cocaine) with the “intent to kill her fetus.”  She was sentenced to twenty years in prison!  In another case a woman was charged with “felony child neglect” when her child tested positive for cocaine.  Fortunately, most women charged were spared the maximum punishments by sympathetic judges, although some were not.

One who did not escape punishment was a Florida woman who was convicted (her first conviction ever) of “drug trafficking” for “delivering drugs to her infant through the umbilical cord.”  This woman had sought treatment for her cocaine addiction, but could find no program that would accept her.  After giving birth, with no complications, those attending nurses and doctors said the baby looked and acted perfectly normal.  Routine tests revealed cocaine in her system and the hospital notified authorities (as required by law), whereupon she was arrested and eventually convicted and sentenced to one year in jail and 14 years of probation.  In South Carolina a total of 18 women were charged with “criminal neglect” of their fetuses.

            According to Siegel, hundreds more women were subjected to civil proceedings seeking to deny them custody of their children.  Not surprisingly, black and poor women have been the most likely targets of such actions.  One study found that in Florida while the proportion of pregnant women who tested positive for drugs was about the same for both blacks and whites (14% vs. 15% respectively), black women were almost ten times more likely to be officially reported to the authorities. 

            Part of this reason stems directly from the fact that good prenatal care is simply not available to poor women and women of color.  Studies have shown that in most hospitals poor women are summarily denied drug treatment if they are pregnant.  This is part of the “blame the user” mentality of the “drug czar” William Bennett who took over the “war on drugs” during the 1980s.  As usual, it became easier to avoid looking at such relevant problems as poverty and racism.  During the entire drug scare propaganda during the 1980s, the so-called “crack baby” became a very convenient symbol.  In time careful research showed that this was more hype than fact.  For instance, one research study found that less than 2% of all newborns were exposed to cocaine and that such exposure rarely had any effect on the baby's health.  So-called “crack babies” are really “poverty babies.” Siegel concluded that: “Mothers who use crack were convenient scapegoats for conservative administrations to blame in order to divert the public's attention away from the declining social and economic conditions affecting increasing numbers of Americans.”

            A more recent case illustrates the extent of the repressiveness of the drug war.  This is a story about a South Carolina black woman who is serving 12 years in prison for “murder.”  Her “crime” was giving birth to a stillborn child because she took cocaine while pregnant.  While there is no research evidence that links cocaine use and stillbirth, prosecutors didn’t care.  This woman became the first in the nation to be convicted of murder for using cocaine while pregnant.

            As of December, 2003 South Carolina was the only state with a child abuse law that could be applied to “viable fetuses.”  This particular case was appealed to the U.S. Supreme Court, which decided not to review it.  The attorney who took the appeal to the Supreme Court was joined by 27 medical and drug policy groups (e.g., American Public Health Association, American Nurses Association and the American Society of Addictions) who wrote that the prosecution of this case “contradicts the clear weight of available medical evidence, violates fundamental notions of public health, and undermines the physician-patient relationship.”

            This case (Ferguson v. City of Charleston) was also supported by the ACLU, which noted in their brief that: “In the past several years, the state has increasingly intruded into the lives of pregnant women, policing their conduct in the name of protecting fetuses. Pregnant women have been forced to undergo unwanted cesareans; they've been ordered to have their cervixes sewn up to prevent miscarriage; they've been incarcerated for consuming alcohol; and they've been detained, as in the case of one young woman, simply because she ‘lack[ed] motivation or [the] ability to seek medical care’.” The ACLU further noted that in 1989 the City of Charleston adopted a policy called the Interagency Policy on Cocaine Abuse in Pregnancy (IPCAP) was created and under this policy pregnant women were subject to warrantless searches “if they met any one of several criteria, including no or minimal prenatal care; unexplained preterm labor; birth defects or poor fetal growth; separation of the placenta from the uterine wall; a history of drug or alcohol abuse; or intrauterine fetal death..”  Among the horrendous examples of overzealousness, the ACLU notes that during the first few months of the program “women were immediately arrested after they or their newborns tested positive for cocaine. One woman spent the last three weeks of her pregnancy in jail. During this time she received prenatal care in handcuffs and shackles. Authorities arrested another woman soon after she gave birth; still bleeding and dressed in only a hospital gown, she was handcuffed and taken to the city jail.”

            In 1994, the Civil Rights Division of the U.S. Department of Health and Human Services began investigating whether the civil rights of African American patients were violated, whereupon the IPCAP was dropped completely. Incidentally, a total of 30 women were arrested under the policy and 29 were African American.

            Following the Ferguson v. City of Charleston, South Carolina began to go after other women in a similar situation. The next case they took to court was another black woman, who used cocaine during her pregnancy. Shortly thereafter, prosecutors in Honolulu went after a native Hawaiian for the death of her two-day-old son.  She was charged with using crystal methamphetamine during her pregnancy.  It should be noted that the South Carolina law could be applied to pregnant women who smoke, drink alcohol, work around certain chemicals and even change cat litter, all of which would constitute activity that may cause “potential harm to a fetus.”  Completely ignored by the drug warriors is the fact that children are more likely to be at risk of harm from prenatal exposure to cigarettes and alcohol (“Fetal Alcohol Syndrome”). One study created the label of “Fetal Tobacco Syndrome” to “draw attention to the extraordinarily high miscarriage and morbidity rates associated with prenatal exposure to cigarette smoke.”

            Recently a number of organizations, such as the Drug Policy Alliance, have come out against the criminalization of pregnancy.  Recent research has challenged the connection between drug use and pregnancy problems, noting that various other social factors are more important.  One survey of the literature found that less than 5% of birth defects are because of drug use and problems such as low birth weight and other fetal development problems stem mostly from the lack of pre-natal care. One fact, often overlooked, is that many poor women are discouraged from seeking help for their pregnancy for the simple fact that they may be reported to the police for drug use.

            The lawyer who took the above-referenced case to the Supreme Court has commented that race enters into the picture, which is not surprising.  She notes that:


            Because the problem of cocaine use in pregnancy was presented predominantly as a problem of the African American community it is deeply intertwined with issues of race, race discrimination, and the legacy of slavery:  while illicit substance abuse crosses all race and class lines, this particular debate has focused on low-income African-American women, many of whom rely on welfare. Because it involves women and pregnancy, the issue of drugs and pregnancy is inseparable from issues concerning the status of all women as well as with sex and sexuality.


This is just another example of some of the horrible consequences of the drug war, the “get tough” ideology, and the race and class bias of the legal system in America.